Troxell’s testimony before City Council’s Health & Human Services Committee July 2010:
July 2010
Health Survey Testimony- Troxell
Between 2008 and 2010, House the Homeless (HTH) conducted several surveys and gathered others conducted by both the City of Austin and the City of Houston that demonstrated that a majority of people experiencing homelessness want to work. To that end, we have been collaborating with Mobile Loaves and Fishes in our “Let’s Get to Work” Jobs Initiative. A more recent survey conducted in 2010 by House the Homeless shows that 48%, or about half of those experiencing homelessness, are suffering debilitating health problems that are so severe that they are rendered incapable of working.
472 of the 501 people surveyed in this most recent survey felt that they periodically needed to sit down and rest from time to time, but 94% said they were unable to do so as they could not find a bench. Compounding the situation, there exists a “Quality of Life” ordinance in Austin that prevents people from sitting or lying down making them subject to fines of up to $500. This ordinance contains only one medical exception and that’s for people already sitting in a wheel chair. There aren’t even exceptions for people on crutches or using orthopedic leg braces. With health concerns ranging from Degenerative Heart Disease to Parkinson’s Disease to Degenerative Rheumatoid Arthritis, half of the homeless population is in need of exceptions to the ordinance.
We are now promoting 19 possible exceptions that range from Disability Award letters from the Social Security Administration or the Veterans Administration to participant letters in the David Powell-AIDS Program to people standing in line at a health clinic and so on. Two city-wide stakeholder meetings resulted in two additional recommended exemptions: evidence of taking psychiatric medications or when the heat index hits 100 degrees or more.
House the Homeless has met with all members of City Council and received favorable support. We pointed out that if exceptions are granted (as they should be) then people will be sitting down all over the city. We do not feel that people suffering disabilities should be sitting on the sidewalks etc. House the Homeless took 350 signatures of people requesting benches to the Mayor. We think that as we encourage people to be more “Green” and to leave their automobiles to create a “world class city” we should provide an ample number of benches to accommodate all citizens. This should include pregnant women, people with Christmas packages and those suffering disabilities. In response, Mayor Lee Leffingwell has directed the City Council Health and Human Services Committee to review the 19 “exemptions” requested by HTH and consider benches as part of the mitigation response.
Some social service providers have been opposed to benches suggesting their use may lead to illegal drug sales. HTH contends that drugs can be sold in either a sitting or standing position and in any event, this is a question of enforcement. The benches that House the Homeless recommends have center dividers so as to deter lying down.
The “Stakeholders” who attended the two meetings consisted of the Downtown Austin Alliance, The Austin Chamber of Commerce, about 10 uniformed police officers, their attorney, an attorney for Travis County, Downtown Community Court, City Staffers, a representative from the Omni and the Driscoll Hotels, downtown neighbors, representatives from the Austin Resource Center for the Homeless, ARCH and a representative from Caritas. They were all joined in opposition and led by Charles Betts from the Downtown Austin Alliance. As a group and to the last person, they opposed any exceptions or any additional benches intended to be a response to this issue. Really? A doctor working for the United States Government, determines that a person is disabled after a process that often takes up to 15 months to complete its findings is somehow unacceptable to this group? Or finding of a disability of a Military Medical Review Team for a person willing to sacrifice a leg in Afghanistan is unworthy of either an exception or a bench?
Today, HTH continues to look toward the Americans with Disabilities Act, ADA, as possible legal recourse to provide the health relief associated with this issue.
Finally, City staff members have reported that, “the Ordinance is working.” Really? For whom? In reviewing COA No Sit/No Lying Down ord. citations secured under the Open Records Act, the Community Court showed 2,729 tickets were issued between January 2009 through December 31st 2009. 70 tickets were subsequently dismissed with 708 convictions. So while the HTH Survey indicated 48% of these folks had major disabilities, only 2.3% were dismissed on the basis of disability through the court. At the same time, it has been observed by advocates that this ordinance has been used indiscriminately to sweep areas of people regardless of their disabilities. Using the Community Court as a filtering mechanism in this instance, has proven unduly burdensome on this disabled population and ineffective. It would seem more humane and more cost effective to properly train police officers in an amended ordinance that clearly states specific exceptions.
While it is recommended that a strict list of exemptions be identified by Council, it is none-the-less the belief of HTH that the best common sense, practical response to the issue in a city seeking to attain world class stature, would be for us to simply provide an ample supply of benches available to all citizens.
At one point in time, it seemed ok to value other people in this country as 3/5ths of that of other people. Almost everyone lined up behind that concept…but not everyone.
Richard R. Troxell
President House The Homeless
Click below to see Richard’s recent interview discussing our health initiative and request for benches throughout the city of Austin.
Homeless advocates ask for benches | kvue.com | KVUE News | Austin, TX | Breaking News*
HTH Conducts Health Survey January 2010- see results-
http://www.housethehomeless.org/hth-health-survey-results-2010/
Proposed “exceptions/exemptions” to the No Sit/No Lie Ordiance:
March 2010 PROPOSED EXEMPTIONS
House the Homeless wishes to respond to the health needs expressed by people experiencing homelessness in the 2010 Health Survey to sit down when necessary.
Presently, the No Sitting/No Lying Down Ordinance forbids sitting in the downtown area with the only health exceptions being for people relegated to wheel-chairs. However, there are other people with significant health issues who should also be exempted from the ordinance.
Whereas 501 people experiencing homelessness were surveyed exposing the fact that 241 of them have dire health conditions severe enough to keep them from working ranging from degenerative nerve disease to bone cancer to debilitating, chronic back pain, and
Whereas, 145 of them expressed severe shortness of breath, and
Whereas, 472 of the 501 surveyed stated when they needed to sit down, they were unable to locate a bench.
Should Therefore be permitted to sit down without fear of reprisal or of being ticketed when presenting any of the following documents or evidence-
-A Mobility Impaired Bus Pass
-Documentation of Hospital Care within the previous two weeks
-Documentation of Food Stamp Work exemption
-An Award letter from the Social Security Administration for Disability
-Documentation of Recuperative-Care within the previous two weeks
-A doctor’s note of disability
-A Letter of disability from DARS
-A letter of participation at the David Powell Clinic
-A letter of participation f/t Community Court for Court Ordered Substance Abuse Treatment
-A letter of participation with the Austin Recovery Center
-Evidence of participation in a Physical or Occupational Therapy Program
-Any person in line to get health services
-Any person using a cane, crutches, walker or orthopedic leg braces
-All pregnant women
-All persons exempted any day the heat Index reaches 100 Degrees F
-All obese persons
-Adults with children
-All persons taking Psychiatric Medications
-All Senior citizens (age 50) and above). This population has age acceleration issues.
City of Austin Ordinance:
(City ordinance as it exists today with only one medical exception- sitting in a wheel chair.)
House the Homeless Proposed Draft Ordinance introduced by Mayor Pro Tem Mike Martinez and Council Member Laura Morrison:
http://www.ci.austin.tx.us/edims/document.cfm?id=135331
Community Court Report:
(that only 2.3% of citations issued under the No Sit/No Lie Ordinance were dismissed based on medical or physical reasons.)
1. The number of citations written by the Austin Police Department and received by the
Downtown Austin Community Court for violation of Austin City Ordinance 20051215-
0 17 regarding 9-4- 14 relating to sitting or lying down on public sidewalks in the
downtown business area, specifically for violations of Subsection (D)(2) of Section 9-4-
14. Timeline for this request is from January 1,2009 through December 31,2009,
separated out monthly.
Year Month Citation Count
2009 1 21
2009 2 174
2009 3 94
2009 4 167
2009 5 101
2009 6 83
2009 7 205
2009 8 382
2009 9 518
2009 10 474
2009 11 208
2009 12 302
2. The number of these citations that were dismissed by the Downtown Austin
Community Court due only to medical, mental health or disability issues. 70 were dismissed
3. The number of citations as requested in #1 that resulted in conviction. 708 resulted in conviction
Proposed Bench with center divider to discourage lying down:
Possible Bench Locations:
July 2010
Possible bench locations pursuant to House the Homeless health survey and exposure of major health conditions relative to the No Sitting/No Lying Down Ordinance.
Location Number of Benches
ARCH porch north wall 2
ARCH west wall 6
ARCH south wall 6
CARITAS west wall 2
CARITAS north wall 2
Salvation Army north wall 2
Salvation Army west wall 2
Trinity Center east side 3
Trinity Center south side 3
East 7th & Congress to I-35 8
Angel House 3
Congress 1st-9th staggered/ E & W 9
Red River 4th-15th “ “ ” 11
University Methodist-Guadalupe 3
Guadalupe throughout the Drag 6
Main Library 4
Cesar Chavez, Congress to I-35 North & South sides-staggered 10
100 East 5thStreet & Congress North side 2
East 5th & San Jacinto NW side of 5th Bank of America 2
NE side San Jacinto @ 5th on corner 5
504 trinity on NE side Copper tank & Event Center 2
311 East 5th St & Trinity SW side 1
East 5th & San Jacinto SW side corner 2 benches on San Jacinto side & 2 benches on 5th St side (322 Bus)
108 East 5t St South side (apartments) 3
SW side of East 5th St. & Brazos (Barber shop) 2
SE side of East 5th & Brazos 1
SE side on 5th St. 2-3
South Side of 105 East 5th 2-3
South side 100 East 5th & Congress 3
N side of 6th St E & W ie 6th & Red River Bus Stop #4 2-3 Note. * All sites listed here & below have an extended 16′ sidewalk.
NW side of 6th & Sabine 2-3
NE side of 6th & Sabine 1
N Side of 6th-West of Sabine at Alley 1
South side of 6th @723 6th Street 1
South side of 6th @709 6th 1-2
South side of 6th@ 701 6th 2
South side 6th West of Sabine @500 Block of Sabine 1
SE side of 6th and Red River 2
SW side of 6th and Red River 1
SE side of 6th and Neches 2
SW side of 6th and Neches @ 423 6th Street 2
SE side of 6th & Trinity 2
SE side of 6th and San Jacinto 1
SW side of Brazos &Congress @115 6th St. 1
NW side of Alley@ 106 6th St. @Louie’s Bar 1
NE side of Alley @ 200 6th St. 1
NE side of 218 6th St. 1
NE side of 300 6th St. @ Malaja Bar 1
NW side of 422 6th St. @ Neches @ Nimos Bar 1
Furthermore, it is recommended that a physical survey be conducted in the entire downtown area to determine the appropriate placement of additional benches.
Memorandum of Law based on this issue as it relates to the Americans with Disabilities Act:
LAW OFFICES OF TEXAS RIOGRANDE LEGAL AID, INC. 542 E. Main Street P. O. Box 2001 EAGLE PASS, TEXAS 78853 Telephone (830) 773-6151 FAX (830) 773-5806
MEMORANDUM OF LAW
TO: RICHARD TROXELL, Director, Legal Aid for the Homeless FROM: MICHAEL E. URENA, Team Manager, Disability Rights Practice DATE: JULY 19, 2010 RE: The ADA and Austin City Code § 9-4-14
Background
You asked for a legal opinion regarding whether the Americans With Disabilities Act would require the City of Austin to accommodate persons with disabilities by partially exempting them from the “Quality of Life” ordinance by allowing them to sit down on public sidewalks and/or by the placement of benches for their use.
You provided me with the following information: The City of Austin has a “Quality of Life” ordinance that prohibits people from sitting down or laying down on public sidewalks in downtown Austin. See Austin City Code § 9-4-14. The only disability related exemption that the Ordinance provides is for persons in wheel chairs. See Austin City Code § 9-4-14(E)[1]. Homeless individuals with disabilities are seriously affected by this ordinance because they often must walk wherever they go and frequently have to remain in lines on public sidewalks waiting their turn to receive public and private services. A recent survey revealed that 48% of the homeless individuals surveyed had a disability. Many of these homeless individuals with a disability cannot walk for long periods or cannot remain standing for long periods without extreme discomfort, pain, or risk of falling from dizziness, loss of balance, or the inability to remain standing.
Conclusion
Title II of the Americans With Disabilities Act imposes upon public entities, such as the City of Austin, an affirmative obligation to make reasonable accommodations for disabled individuals so that the public entity’s services, programs, or activities are readily accessible to and usable by individuals with disabilities. Thus, unless the City makes a reasonable accommodation to insure that public sidewalks are “readily accessible” to homeless individuals with a disability, the “Quality of Life” ordinance, and, thus, the City, violates the ADA. Providing benches for their use or allowing an exemption that allows homeless individuals with a disability to sit on public sidewalks appear to be two ways of providing a reasonable accommodation.
Discussion
The Requirements of the ADA and Its Regulations
A recent decision from the U.S. District Court for the Western District of Texas gave the following explanation of the requirements of the ADA and its regulations. See Pena v. Bexar County, Texas, 2010 U.S. Dist. LEXIS 61386, Case No. SA-08-CV-1016-XR (W.D. Tex. June 21, 2010).
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation or denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Public entities include “[a]ny State or local government” and “[a]ny department, agency, special purpose district, or other instrumentality of a State or States or local government.” 28 C.F.R. § 35.104; 42 U.S.C. § 12131(1). Title II’s enforcement provision incorporates by reference § 505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as amended, 29 U.S.C. § 794a, which authorizes private citizens to bring suits for money damages. 42 U.S.C. § 12133. Tennessee v. Lane, 541 W.S. 509, 517 (2004).
To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate: (1) that he or she is a qualified individual with a disability within the meaning of the ADA; (2) that he or she was excluded from participation in, or denied the benefits of the services, programs, or activities for which the public entity is responsible, or was otherwise subject to discrimination by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was “by reason of” his or her disability. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). “[U]nder Title II of the ADA, discrimination need not be the sole reason for the exclusion of or denial of benefits to the plaintiff.” Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).
In addition to its prohibition of disability-based discrimination, the ADA imposes upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals. Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005). The regulations implemented for Title II of the ADA provide that ‘[a] public entity shall make reasonable modification in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The regulations further state that “[e]xcept as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” 28 C.F.R. § 35.149. Section 35.150 provides that “[a] public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a). 28 C.F.R. § 35, Appendix A to Part 35 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services is directly on point. It recognizes that “[t]he general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.” 28 C.F.R. § 35, Appendix A to Part 35 (emphasis added).
When a public entity defendant fails to meet its affirmative obligation to make reasonable accommodations, the cause of that failure is irrelevant. Bennett-Nelson, 431 F.3d at 454-55. Rather, in lieu of such an inquiry, the court must determine whether the requested accommodation was “reasonable”-that is, whether it would “fundamentally alter the nature of the service, program, or activity.” Bennett-Nelson, 431 F.3d at 455 n.12. Thus, the Fifth Circuit has stated that, when the allegation is failure to accommodate, the question is not “whether the denial of the accommodation to the disability was caused solely or only in part by the animus of the defendants” but is “whether the failure to accommodate violates the ADA; and the existence of a violation depends on whether under both the Rehabilitation Act and the ADA, the demanded accommodation is in fact reasonable and therefore required. If the accommodation is required the defendants are liable simply by denying it.” Bennett-Nelson, 431 F.3d at 455 (emphasis added).
In Delano-Pyle v. Victoria County, Texas, 302 F.3d 567 (5th Cir. 2007) the Fifth Circuit held that the ADA, unlike 42 U.S.C. section 1983, does not require a policy, custom, or practice of discrimination by a public entity, and instead contemplates respondeat superior liability for the public entity based on the actions of its employees and agents. The court noted that
The ADA expressly provides that a disabled person is discriminated against when an entity fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and service.” A plain reading of the ADA evidences that Congress intended to impose an affirmative duty on public entities to create policies or procedures to prevent discrimination based on disability. Thus, although it is true that for claims asserted under § 1983, an official policy must be identified, the same rule cannot be reconciled with Congress’s legislative objectives in enacting the ADA and the RA [Rehabilitation Act] . . . .
Delano-Pyle v. Victoria County, Texas, 302 F.3d at 575. The court in Delano-Pyle also held that “[t]here is no ‘deliberate indifference’ standard applicable to public entities for purposes of the ADA or the RA,” but recognized that , in order to receive compensatory damages for violations of the acts, a plaintiff must show intentional discrimination. Delano-Pyle v. Victoria County, Texas, 302 F.3d at 575. In Delano-Pyle the Fifth Circuit upheld a jury verdict finding a violation of Title II based on an indiviual police officer’s conduct with regard to a disabled individual amounting to intentional discrimination.
Application of the ADA to Austin’s Quality of Life Ordinance
The City of Austin is a local government and, thus, is required to comply with the ADA. Obviously, any person who is not traveling in a motor vehicle or bicycle is a “qualified individual” entitled to use public sidewalks. Thus, homeless individuals with a disability are “qualified individuals” entitled to use the public sidewalks in downtown Austin. Homeless individuals with a disability are also qualified to use other public services available to them in downtown Austin. However, the public sidewalks and the public services those sidewalks lead to in downtown Austin may not be readily accessible to individuals who are unable to stand for long periods of time because of a disability if no reasonable accommodation for their disability is allowed. In addition, the public sidewalks and the public services those sidewalks lead to in downtown Austin may not be readily accessible to homeless individuals with a disability that limits their ability to walk long distances if no reasonable accommodation for their disability is allowed. Thus, these two classes of individuals may have a claim against the City of Austin for violation of the ADA unless a reasonable accommodation of the “no sitting” ordinance is provided to them because in that case the public sidewalks and publice services would not be readily accessible to them.
The decision in Pena v. Bexar County is instructive in this regard. In Pena v. Bexar County, Texas, 2010 U.S. Dist. LEXIS 61386, Case No. SA-08-CV-1016-XR (W.D. Tex. June 21, 2010) an individual with a disability brought numerous claims against Bexar County, Texas, (and individuals) including several violations of the ADA. One of the ADA claims was that Bexar County violated the ADA because the security officer at the entrance to the Bexar County Courthouse required the individual to remain standing for fifteen minutes while the security officer’s supervisor came to their location to decide whether the individual could enter the courthouse with his service animal. Pena v. Bexar County at 5-6. The plaintiff had requested that he be allowed sit down on a bench nearby but the security officer told him he had to remain standing. Id. The plaintiff said that the amount of time he had to remain standing “seemed absolutely interminable” because he had difficulty maintaining balance. Id. at 5. When the supervisor arrived, the plaintiff showed him a document from the Social Security Administration that verified his disability and stated that he had a service dog. Id. at 6. After reviewing the document, the supervisor allowed the plaintiff to enter the building. Id. In considering whether the security officer, and thus, Bexar County, had violated the ADA by requiring the individual to remain standing, the court noted “that this would not appear to be intentional discrimination, as there is no evidence that Plaintiff ever informed the individual [security officer] that he was unable to stand for long periods of time due to his disability.” Id. at 31 n. 7. The converse would also be true: if the plaintiff had informed the security officer that he was unable to stand for long periods of time due to his disability and the officer refused his request to sit down, then it would have been a violation of the ADA.
Thus, the City of Austin would violate the ADA if it does not provide a reasonable accommodation of the no sitting ordinance for individuals who, due to a disability, cannot stand or walk for long periods of time. In this regard it is also significant that the no sitting ordinance provides an exemption for any person who is “waiting in line to purchase tickets to or attend a performance or public event” regardless of disability. See Austin City Code § 9-4-14(E)(7). If anyone waiting in line to see a concert is allowed to sit down, surely allowing a homeless individual with a disability waiting in line to get food, shelter, medical or social services to sit down would be a reasonable accommodation. In addition, when an individual who cannot walk long distances due to a disability is walking downtown, surely it would be reasonable to allow that individual to sit down from time to time on her way from one part of the city to another. Otherwise, she would be denied equal access to the public sidewalk.
To be entitled to a reasonable accommodation, when asked by law enforcement, an individual with a disability would have to identify themselves as a person with a disability entitled to the accommodation. Use of documents from the Social Security Administration, the Veterans Administration, or a doctor, etc. should be sufficient documentary proof of a disability. If the document does not specifically state that the individual cannot stand or walk for long periods due to their disability, the officer should ask whether the persons disability impairs their ability to stand or walk and the individual would have to explain that fact. Finally, the placement of benches in appropriate places would also be a reasonable accommodation, since many individuals who cannot stand or walk for long periods may also have difficulty standing up from sitting on the ground.
[1] Although the Ordinance also provides an exemption for medical emergencies (see Austin City Code § 9-4-14(E)(1)) that is not a disability related exemption. Medical emergencies involve people who do not have a disability as well as those who do have a disability. And allowing a person to sit down only after she has fallen and injured herself so severely that it amounts to a medical emergency is not an accommodation for her disability that impairs her ability stand for long periods. It is the opposite: the foreseeable but tragic result of the denial of an accommodation.
City of Austin Staff Recommendations to deny any “exceptions” to the No Sit/No Lie Ordiance for health reasons and their recommendations to not increase the number of benches in response to this issue:
2,700 No Sit/No Lie citations issued in FY 2009, results in 708 convictions. Of these 708 convictions, 96% were people experiencing homelessness. This ordinance is obviously targeting Austin’s citizens experiencing homeless.
Downtown Austin Alliance head, Charles Betts, Austin’s “un-humanitarian”
turns his back on people experiencing homelessness by creating “quality of life” ordinances that target the very existence of these people.
“This meeting is an exercise in not really anything important.” Mr. Betts was quoted in a stakeholders meeting to determine which doctor’s certification would be accepted and thereby exempt people who are experiencing homelessness from fines of up to $500.00 for the criminal offense of sitting down in response to their disabilities.
TO: Public Health & Human Services Subcommittee
FROM: Cathie Childs, Assistant City Attorney
DATE: August 9, 2010
Re: Constitutionality of City’s “Sit/Lie” Ordinance
SUBJECT:
Whether the City’s current “sit/lie” ordinance violates the American with
Disabilities Act by denying the City’s homeless population the benefits of
services, programs or activities of the City.
SHORT ANSWER:
The city’s “sit/lie” ordinance does not violate the ADA.
A) “Homelessness” is not, in-and-of itself, a “disability” under the ADA;
(B) The City’s public sidewalk program does not “provide services” to
the City’s homeless population; and,
(C) The City’s sidewalk program does not discriminate against the
homeless receiving services based upon any alleged “disability.”
BACKGROUND:
At your last subcommittee meeting Richard Troxell provided you with a
Memorandum of Law from Texas RioGrande Legal Aid Inc. (TRLA) The memo
asserts that the city of Austin’s “sit/lie” ordinance violates the ADA “unless the
city makes a reasonable accommodation to insure that public sidewalks are
‘readily accessible’ to homeless individuals with a disability.” (page 2 of Memo).
You asked the Law Department to review the memo and report back to you.
ANALYSIS:
The ADA prohibits discrimination on the basis of disability in employment, state
and local government, public accommodations, commercial facilities,
transportation, and telecommunications. To be protected by the ADA, a person
must have a disability or have a relationship or association with an individual with
a disability. Title II of the ADA requires city governments to ensure that all of their
programs, services, and activities, when viewed in their entirety, are accessible
to people with disabilities.
The City of Austin is undeniably a “public entity” under Title II of the ADA. As
such, the city must ensure that all of its programs, services, and activities, when
viewed in their entirety, are accessible to people with disabilities. Program
access is intended to remove physical barriers to city services, programs and
activities, but it generally does not require that a city government make each
facility, or each part of a facility, accessible.
To establish a prima facie case of discrimination under Title II of the ADA, a
plaintiff must demonstrate:
2
(1) that he or she is a “qualified individual with a disability” within the
meaning of the ADA;
(2) that he or she was excluded from participation in, or denied the
benefits of the services, programs, or activities for which the public
entity is responsible, or was otherwise subject to discrimination by
the public entity; and
(3) that such exclusion, denial of benefits, or discrimination was “by
reason of” his or her disability.
By examining each requirement of a prima facia case, it is clear that the
reasoning in the TRLA memo is flawed, and the city is not in violation of the ADA.
1. Is a homeless person necessarily a “qualified person with a disability”?
The ADA defines a “disability”, with respect to an individual, as a “physical or
mental impairment that substantially limits one or more of the major life activities
(such as walking or standing) of such individual; a record of such impairment; or
being regarded as having such as impairment.” A qualified individual with a
disability is defined as one who has a disability according to the definition, above,
and is eligible to receive the services being offered by the public entity.
There is no federal statute that defines homelessness as a “disability.” Rather,
federal law defines a homeless person as one who: lacks a fixed, regular, and
adequate nighttime residence . . . and has a primary night residency that is: (a) a
supervised publicly or privately operated shelter designed to provide temporary
living accommodations . . . (b) an institution that provides temporary residence
for individuals intended to be institutionalized, or (c) a public or private place not
designed for, or ordinarily used as, a regular sleeping accommodation for human
beings.
This federal definition of “homelessness” does not include a physical or mental
impairment component as required by the ADA’s definition of “disability.” While
we certainly acknowledge many homeless individuals have physical or mental
impairments, “homelessness” under federal law does not equal “disabled.”
2. Are homeless individuals excluded from participation in, or denied the
benefits of the services, programs, or activities for which the city of Austin
is responsible, or otherwise subject to discrimination by the city of Austin?
Title II’s prohibition of discrimination in the provisions of public services applies to
maintenance of public sidewalks, which is a normal function of a municipal entity.
Section 35.150 of the Rehabilitation Act (RA) (which was enacted to ensure
handicapped individuals are not denied jobs or other benefits because of
prejudiced attitudes or ignorance of others) requires the provision of curb ramps
in order for sidewalks to be accessible to individuals with disabilities. Most cases
under the ADA involving sidewalks address mobility disabilities and sidewalk
3
accessibility, not homelessness. For example, the Ninth Circuit Court of Appeals
has ruled that the City of Sacramento must not only provide curb ramps at
intersections on newly-constructed or remodeled roadways and walkways, it
must also have a program which will assure the accessibility of all sidewalks
between curb ramps. Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir.
2002).
The City of Austin’s sidewalk program is intended to provide connectivity and
ease in mobility to the citizens of Austin. Nothing in the “sit/lie” ordinance
prevents homeless individuals from using the city sidewalks as they are intended,
and the TRLA memo does not address this aspect of the city’s sidewalk program.
On the other hand, the City does provide benefits and services to the homeless
population in Austin. Those services include distributing funds through groups
such as Caritas and Front Steps to serve the immediate needs of its homeless
population. The City also participates in the Community Action Network (CAN) to
provide services through the Homeless Resource Center, including basic and
supportive services designed to address the needs of homeless and nearhomeless
individuals.
The sidewalk program and homeless services are neither interrelated programs
nor programs whose components are interchangeable. The sidewalk program is
administrated by the transportation department, while the social services are
provided through the City’s Health and Human Services Department.
In short, the sidewalk program is not intended as a service, program, or activity to
the City’s homeless individuals. Since the sidewalk program does not provide
services to a homeless individual, the sidewalk program should not be found to
discriminate against homeless individuals on the basis of an alleged disability by
not letting them sit or lie down on the public sidewalk.
Allowing individuals to use something other than for its intended purpose is not a
“reasonable accommodation” under the ADA. The TRLA memo makes this
supposed connection between the public sidewalks and the provision of
homeless services, but that analysis is not supported by the ADA, the RA or case
law.
3. Such exclusion, denial of benefits or discrimination was “by reason of” his
or her homelessness?
Because TRLA has not demonstrated that the City of Austin is denying benefits
or services to the homeless population in Austin, it obviously cannot demonstrate
the third prong of a prima facia case.
The ADA expressly provides that a disabled person is discriminated against
when an entity fails to “take such steps as may be necessary to ensure that no
4
individual with a disability is excluded, denied services, segregated or otherwise
treated differently from other individuals because of the absence of auxiliary aids
and services.” Under Title II of the ADA, a public entity is obligated to remove
barriers from sidewalks, such as benches, wires, cracks, breaks, and sign posts,
if their presence poses a barrier to accessibility of the sidewalk to, for example,
persons using wheelchairs or those with sight impairments.
IV. CONCLUSION
The Texas Rio Grande Legal Aid Inc. Memorandum fails to state a prima facie
case for violation of Title II under the ADA. The Memorandum does not establish
homelessness as a “disability” under the ADA, and fails to demonstrate that the
City’s sidewalk program denies homeless individuals availability of the City’s
programs, services or activities.
LAW OFFICES OF
TEXAS RIOGRANDE LEGAL AID, INC.
542 E. Main Street
P. O. Box 2001
EAGLE PASS, TEXAS 78853
Telephone (830) 773-6151 FAX (830) 773-5806
MEMORANDUM OF LAW
TO: RICHARD TROXELL, Director, Legal Aid for the Homeless
FROM: MICHAEL E. URENA, Team Manager, Disability Rights Practice
DATE: August 12, 2010
RE: Response to Austin Assistant City Attorney’s Memo dated 8/9/2010
Thank you for providing me a copy of the memo dated August 9, 2010, from Austin Assistant City Attorney Cathie Childs to Austin’s Public Health & Human Services Subcommittee (“the Childs’ memo”). Although the Childs’ memo states that it regards the “Constitutionality of City’s ‘Sit/Lie’ Ordinance” the text of that memo purports to be a response to my memo to you dated July 19, 2010, regarding the Americans With Disability Act (ADA) and Austin City Code § 9-4-14 (“my memo”). I would like to briefly reply to the Childs’ memo.
The first thing I would like to point out is that my memo does not address any constitutional issues. Rather, it concerns the ADA and Austin’s “Quality of Life” ordinance that prohibits sitting on public sidewalks in the downtown area of Austin.[1]
Secondly, the Childs’ memo attempts to mischaracterize my memo in numerous respects. From beginning to end, it addresses homelessness and not disability. For example, it asks “Is a homeless person necessarily a ‘qualified person with a disability’?” and takes three paragraphs to reach the obvious conclusion that “’homelessness’ under federal law does not equal ‘disabled.’” See the Childs’ memo at page 2.[2] The Childs’ memo concludes that my memo “does not establish homelessness as a ‘disability’ under the ADA, . . .” See the Childs’ memo at page 4.
I agree. But my memo does not attempt to establish that homelessness is a disability. My memo only discussed the protections afforded to individuals experiencing homelessness who have a disability, not homeless individuals in general. My memo does note that a recent survey revealed that 48% of the homeless individuals surveyed have a disability, so they are seriously affected by the ordinance. [3] However, my memo only addressed the rights, pursuant to the ADA, of homeless individuals who suffer from a disability, as defined by the ADA, that impairs their ability to walk or stand. In fact, my memo supports the position that the ADA requires an exemption to Austin City Code § 9-4-14 for disabled individuals whether they are experiencing homelessness or not. Clearly, homeless individuals who do not have a disability are not protected by the ADA and my memo does not claim that they are.
In conclusion, the Childs’ memo misconstrues my memo and does not address my arguments head on.[4] The tone of the Childs’ memo betrays an unfortunate disregard for the needs of disabled persons who are experiencing homelessness, even though a recent survey revealed that 48% of the homeless individuals surveyed were disabled persons. This appears to be the same disregard for the rights of individuals with disabilities as that reflected by the arresting officer in Delano-Pyle v. Victoria County, Texas, 302 F.3d 567 (5th Cir. 2007). However, I expect that Victoria County trained its officers to have a different attitude toward individuals with disabilities after the Fifth Circuit affirmed the $230,000.00 jury verdict awarded in that case.
[1] My memo does not address the constitutionality of Austin’s “no sit” ordinance; it only addresses the ADA (that is, a federal statute) and, at this point, I have not thoroughly researched the constitutionality of the ordinance. However, since the Childs’ memo has raised the constitutionality issue, I will note the following: since the ordinance allows anyone to sit or lie down on public sidewalks if they are “waiting in a line to purchase tickets to or attend a performance or public event” and because any distinction between those people and people who are waiting in line to receive food or other services does not appear to substantially related to an important government interest, the ordinance may well violate the equal protection clause of the U.S. Constitution. However, that subject is beyond the scope of this memo.
[2] Likewise, sections “2.” and “3.” of the Childs’ memo only address “homeless individuals” not homeless individuals with a disability that impairs their ability to walk or stand.
[3] Since 48% of the individuals experiencing homelessness surveyed have a disability, it is surprising that of the 2729 citations received by the downtown Austin Community Court between January 2009 through December 31 2009, only 2.3% were dismissed due to medical, mental health or disability reasons by the court.
[4] For example, the fact that [m]ost cases under the ADA involving sidewalks address mobility disabilities and sidewalk accessibility, not homelessness” (see the Childs’ memo at pgs 2-3) does not address the ADA’s requirement that the City of Austin make its sidewalks accessible to disabled individuals including those who are experiencing homelessness.v
August 17, 2010
House the Homeless responds to City Staff Recommendations Regarding the No Sit / Lie Ord.
It is a slip-shod report that mischaracterizes and distorts facts including the assertion that “downtown homeless providers oppose additional exemptions to the ordinance…”
1. Homeless service providers omitted from this over reaching statement include:
A. Texas Rio Grande Legal Aid
B. Legal Aid for the Homeless-helping Austin’s disabled poor secure disability benefits and housing in conjunction with Mobile Loaves and Fishes
C. House the Homeless, Texas’s oldest all volunteer, homeless advocacy group
D. ADAPT- Austin’s oldest disability advocacy organization
E. Mobile Loaves & Fishes- providing food and housing for Austin’s homeless
F. Saint David’s Episcopal Church: Trinity Center-providing multiple homeless services
G. Travis County Integral Care, Austin/Travis County’s mental health Authority
Note* Several of us were in the Stakeholder meetings but our positions supporting exceptions and benches were not recognized.
2. Staff recommendation is based on…”successful implementation of the Ordinance to date (determined in consultation with APD and Community Court.”
REALLY?
The Community Courts’ own reporting of cases in FY 2009 shows that only 2.3% of citations issued under this ordinance were dismissed based on physical or mental conditions. Compare this to the Statistical Survey conducted Jan 1, 2010 by House the Homeless of 501 persons experiencing homelessness which uncovered that 48.1 % had disabling conditions that kept them from working.
NEXT: The findings were based on “adequate discretion provided to APD…” Under the Open Records Act, we have secured the results of all 807 convictions for citations issued in 2009- of which 96% were people experiencing homelessness. This is a prima facie case of selective enforcement that is targeting people experiencing homelessness.
3. The Staff report then points to the Great Streets program and states that the program includes plans for adding benches in the downtown Area.” A review of this report exposes this to be a misleading statement with no time limits having been set for any benches and no funds budgeted for benches at this time.
Legal Standing
Finally, House the Homeless has asserted to have legal standing on this issue under the Americans with Disabilities Act. To this end, our legal counsel, Texas Rio Grande Legal Aid, has provided a thoughtful Memorandum of Law. In response, City Legal apparently having no legal issues to stand on, chose to completely mischaracterize our position and provide a totally bogus argument. Among several other misrepresentations, Attorney Cathie Childs asserts that we are arguing that homelessness is a disability. Clearly, this is an intentional mischaracterization. We are arguing:
People with disabilities evidenced by medical authorities, should be allowed to sit down in response to those disabilities without being subject to any fines for doing so.
Finally: This is clearly a controversial issue with opposing perspectives. Given the compelling humanitarian nature of our request and the failed and misleading Staff Report and the embarrassing City Legal response, the citizens of Austin would best be served if this Health and Services Committee either grant all exemptions or simply pass this issue though to the entire Council for its review! Thank you.
Respectfully Submitted,
Richard R. Troxell
Outcome of the August 17, 2010 Meeting before the Health and Human Services Committee
The No Sit/No Lie Ordiance was voted out of committee for review by the entire council in September. There were positive suggestions and tweaking of the ordiance proposed by the council members. They will finish framing out their “improvements” to the ordiance, run it past other stake holder and City Legal, and then pass on to council. Note- the suggested changes came in Executive Session which occured prior to the House the Homeless report identifying that 96% of the people receiving tickets under the ordiance in FY 2009. Therefore, the suggested changes do not yet reflect an addressment of this selective inforcement and targeting of homeless persons. We hope the full council will take up this very important concern.
August 18, 2010
Council panel OKs “humanitarian” changes to No Sit/Lie Ordinance
By Josh Rosenblatt
Homeless advocacy groups scored a major victory yesterday, as the Council Health and Human Services Committee voted unanimously to make changes to the controversial No Sit/No Lie Ordinance. Those changes, if approved by the whole Council, would broaden and clarify the ordinance, allowing for more medical exemptions to the law that prohibits people from sitting or lying in pedestrian rights-of-way in the downtown area.
Last month, advocacy group House the Homeless convinced the committee to delay making a recommendation regarding medical exemptions to the ordinance, despite several powerful stakeholder groups – including the Downtown Austin Alliance, the Downtown Austin Community Court, andCaritas of Austin – speaking out against those exemptions. House the Homeless President Richard Troxell, citing a recent study by Texas RioGrande Legal Aide, said at the time that the city’s current No Sit/No Lie Ordinance could be challenged under the Americans With Disabilities Act.
At yesterday’s meeting Troxell, flanked by 20 or 30 sign-holding supporters, once again argued for 18 medical exemptions to be put into the ordinance. “People with disabilities evidenced by medical authority should be allowed to sit down in response to those disabilities without being subject to any fines for doing so,” he said.
The three-member committee did not speak to those 18 exemptions specifically but did approve a more general motion that would substantially alter the way the ordinance could be enforced.
Council Member Laura Morrison, who made the motion to change the ordinance, said that it is important for the city to make revisions to the ordinance in order to “make sure we are a humanitarian and compassionate city. … People with disabilities who have to sit down because of medical conditions: We have to be a city that allows that.”
Addressing the issue of the 18 desired exemptions, Morrison said the committee’s alterations would help the city “pinpoint” the problems raised by House the Homeless “in an enhanced way because the exemptions raised by House the Homeless would allow anybody to sit down if they had a medical condition” even if they were sitting down for some other reason.
Morrison’s motion instructed the legal department to draft changes and bring them back to the committee for review. Those changes concern three subsections of the ordinance having to do with people to whom the ordinance does not apply.
Currently the ordinance states that people may sit or lie down “because of a medical emergency.” The revised version would state that people can sit or lie down “because of, or to prevent, a medical emergency.”
“Clearly we don’t want people to have to push themselves to the brink before they can sit down,” said Morrison.
The second alteration concerns a section which states that the law does not apply to a person who, “as the result of a disability, uses a wheelchair or similar device to move about.” Worried that the wording of that sentence implies that only people using wheelchairs or similar devices should be considered disabled, the members of the committee voted to clarify that the exemption applies to any person with a disability, as defined by the Americans With Disabilities Act.
Finally, the committee said staff should broaden a section of the ordinance that says that the law does not apply to a person who “is waiting in a line to purchase tickets to or attend a performance or public event.”
Irit Umani, the executive director of the Trinity Center, which assists the homeless, told the committee that some people had received citations while sitting outside the center waiting to get in.
“Clearly we have people waiting in line also for goods and services, for instance to go into the Trinity Center,” Morrison said. “As an equality issue, we need to be able to let people standing in line for any goods and services be able to sit.”
When the committee voted to approve the motion, they were greeted by enthusiastic applause. Troxell seemed particularly pleased, though he told In Fact Daily that he would reserve his final judgment until Council approves the changes and the police begin to implement them.
“It’s a huge victory,” he said. “But the outcome will be based on what happens on the street. It’s always about the street. If the police stop issuing tickets to the disabled, then we’ve won. If they continue to issue tickets to people who are disabled for sitting down, then we’re coming back. It’s that simple.”
http://www.kxan.com/dpp/news/local/no-sit-no-lie-ordinance-frustrating
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New Years Day Fun!
Citizens across Texas and the U.S. rally to support us and our efforts to protect our homeless citizens from dying of hypothermia this winter. Wow!
Support has been received from neighbors in:
Austin, Paige, West Lake Hills, Rollingwood, San Marcos, Georgetown, Hutto, Logo Vista, Round Rock, Pflugerville, Buda, Dripping Springs, Cedar Park, Bastrop, Manor, Temple, Amarillo, Alpine, Leander, The Hills, Driftwood, Dale, Del Rio, Midland, Dallas, and Giddings Texas.
Across the country we have received support from Norfolk, NE; Kansas City, MO; Falls Church, VA; Lawndale, CA; South Verlington, VT; Somerville, MA; Princeton, NJ; Elkins Park, PA; Jenkintown, PA; Hopkins, MN; and Washington, DC.
Please join us in our efforts to reach out and protect our 4,400 homeless folks in the Austin area with only 600 emergency beds! We can save lives with thermal underwear. Only $10.00 will purchase a thermal top and bottom. $25.00 will fully outfit a person in thermal top, bottom, hat, gloves, socks, and a rain poncho. Please continue to give generously.
Richard
On January 1st, We had our 10th annual
House The Homeless Thermal Underwear Party
If you prefer, you may send a check* to-
House the Homeless
P.O. Box 2312
Austin, TX 78758
*A check means that 100% of your dollars goes to those we serve.
On New Year’s Day, House the Homeless, with 40 volunteers from the community and from the First Baptist Church, provided a city wideThermal Underwear Party for homeless citizens from Austin. Rockin’ Gospel Project provided the music and entertainment while a ham lunch was serviced and participants received thermal tops and bottoms, socks, gloves, hats, and ponchos to help them survive this winter’s weather.
Thermal Underwear Give Away
Thank you to Trianon Coffee House, Central Market, Sweetish Hill Bakery, Whole Foods, Texas honey Ham, and JoAnn Koepke and Family for providing many donations to make the holiday lunch a success.
Thank you and Happy New Year to all!
Richard